Be advised that I write these blogs/articles for my, Eric Roy, and my staff’s benefit. Most of the information regarding this specific topic comes from the teachings of Rick Friedman and Patrick Malone. These are two of the most respected trial attorneys in the country. For a thorough understanding of these ideas please refer to any of their publications which are enlightening to put it mildly.
When we choose an expert, who may testify in our plaintiff’s personal injury trials we need to be selective. We want experts who can speak commonsensically to our jurors. If our expert is so trapped in the jargon of his trade that he or she cannot communicate with the lay person he will not make a good testifying witness. So find an expert who can communicate well and who loves to speak about the subject matter at hand. Once you select your expert you need to begin speaking to him or her about the principles that underlie your case. It is necessary that the two of you be on the same page as to these core principles. If you are not on the same page, then either you have the wrong case or the wrong expert, but one of the two needs to be changed. Begin speaking to your expert early on in the case, preferably before you file a complaint.
If you have already developed rules and principles for your case you will want to make sure your expert agrees with the rules you have chosen. Have your expert tell you every single principle or rule that he or she may think is important in this industry as it applies to your case. After your expert tells you what the rules or principles are have him or her explain why each of those rules is important and why those rules needs to be followed. After you get a thorough list of all of the principles and /or rules which your expert reveals have your expert refer you to any other sources which might reveal more rules and principles. Your expert can then direct you to publications which could be useful for you or your research assistant to scan through for more rules and principles and support for those rules and principles. Once you and your expert have a list of principles and rules you can sit down and craft a set of good working rules. At this point error on the side of being over inclusive. If you think that a rule may not be important, keep it on your list of rules for now, as you will refine your list as trial approaches. You may have some rules or principles that you think are important which your expert may disagree with. Discuss these rules with your expert. You may find that your rules have weaknesses which you didn’t anticipate. Thus your expert should be working hand in hand with you as you craft your trial rules.
When your expert prepares her report make sure that she includes all of the principles and rules within her report. When it comes time to testify at trial your expert will then explain the rules of the case to the jurors. Of course you will have already introduced all of these same rules in your opening statement. Your expert should be able to clearly tell jurors what the rules are, why they need to be followed, and what can happen when these rules are not followed.
The standard employed by the court for admission of expert testimony varies from state to state. Many states have adopted the Daubert standard. Those states that have not expressly adopted the Daubert standard may simply require that the methodologies employed by experts be generally accepted in the relevant scientific community. If your state does not specifically endorse the Daubert standard it likely endorses a standard which is similar to that of the Daubert standard. As you consult with your expert witness you will need to be sure that your witness can withstand a Daubert challenge.
To withstand a Daubert challenge you must be able to show that your expert’s testimony is based on sufficient facts and data, that the methods employed by your expert are a product of reliable principles and methods, and lastly that your expert applied those principles and methods to the facts of your case. In essence, your expert must have a methodology she employs and that methodology must have some origin outside of litigation.
There will be some experts whose field does not rely upon scientific methodology. If this is the case then you need to demonstrate that your expert has sufficient knowledge and experience in the field. Chances are, your expert has specific principles and rules that must be followed in that particular field of expertise. All you need to do is to demonstrate that your expert has experience in applying these rules to cases similar to yours.
To defeat the Daubert motion you will need to find literature which supports your expert’s methodology. Have your research assistant find this information for you. Be advised that this may mean you need to go to the library, as a lot of this material may not be online as of yet. Oftentimes your expert will be familiar with this research but they will be unable to cite the literature. You need to take over this task for your expert. Make sure that your expert reviews the literature after you find it however. This is essential, especially before deposition or trial. Otherwise you risk the chance that your expert will come up empty handed when asked to identify supporting literature for his methodologies in deposition. If you come across the expert who cannot or will not support their opinions with literature be prepared to look for another expert. Some experts believe that the many years of practice in their area of expertise is sufficient in and of itself to allow them to testify on the matter. It is essential that he or she be able to refer to some written literature supporting his or her methodology employed in your specific case.
A good tactic for defending against Daubert challenges is to lock in the opposition expert’s testimony if it supports your expert’s methodologies. Since Daubert is essentially about demonstrating that your expert used sound methodologies in reaching conclusions you should look to lock in the opposition expert’s agreement as to this same methodology. It is fine that the opposing expert disagrees with our expert’s conclusion as conclusions are not relevant for the purposes of Daubert.
As a final note, Rick Friedman makes it a point that you should always attack the other side’s experts. It is not so much that you think you may be able to exclude those experts but more so that you need to level the playing field as seen from the jurors eyes. If the jurors only see your expert’s credibility being tested and not the Defendant’s expert’s credibility being tested, then jurors are lead to believe that the defendant’s experts are beyond reproach. So put on your own Daubert motion or at least submit affidavits demonstrating the deficiencies in the Defense expert’s theories.